This case was last updated from Los Angeles County Superior Courts on 01/10/2021 at 12:04:29 (UTC).

SIAKIMATIVA SIMETA VS ALBERTA DEVELOPMENT PARTNES LLC ET AL

Case Summary

On 12/07/2016 SIAKIMATIVA SIMETA filed a Personal Injury - Motor Vehicle lawsuit against ALBERTA DEVELOPMENT PARTNES LLC. This case was filed in Los Angeles County Superior Courts, Norwalk Courthouse located in Los Angeles, California. The Judges overseeing this case are MARGARET MILLER BERNAL and JOHN A. TORRIBIO. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3011

  • Filing Date:

    12/07/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Motor Vehicle

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

MARGARET MILLER BERNAL

JOHN A. TORRIBIO

 

Party Details

Plaintiffs, Petitioners and Cross Defendants

SIMETA SIAKIMATIVA

ALFREDO PEREZ

SIAKIMATIVA SIMETA

Respondents, Defendants and Cross Defendants

INDUSTRIAL REALTY GROUP LLC

PARKS LYLE

ALBERA DEVELOPMENT PARTNERS LLC

WESTERN RETAIL ADVISORS

DOES 1-50

CONSTRUCTORS COMMAND PERFORMANCE

LYLE PARKS JR. INC.

ALBERTA TIERRA LUNA MANAGEMENT LLC

IRG DOWNEY LLC

COMMAND PERFORMANCES CONSTRUCTORS DOE 1

SIMETA SIAKIMATIVA

ALFREDO PEREZ

SIAKIMATIVA SIMETA

LYLE PARKS JR. INC

COMMAND PERFORMANCE CONSTRUCTORS INC.

ROES 1 THROUGH 100

ROES 1 THROUGH 50

ROES 1-50

SECURITY PROTECTION SERVICES INC.

ALLIED WORLD SURPLUS LINES INSURANCE COMPANY

Cross Plaintiffs, Defendants and Cross Defendants

CONSTRUCTORS COMMAND PERFORMANCE

LYLE PARKS JR. INC.

COMMAND PERFORMANCE CONSTRUCTORS INC.

IRG DOWNEY LLC

ALLIED WORLD SURPLUS LINES INSURANCE COMPANY

34 More Parties Available

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

SULLIVAN & SULLIVAN

CONSEJO ALBERTO

EBENHACK DAVID JOHN

FIORE MAURO JR. LAW OFFICES OF

PUCHE SERGIO JULIAN

Defendant and Cross Defendant Attorneys

MANNIN & KASS ELLROD RAMIREZ TRESTER LL

HARLAN ROBERT SCOTT

LYLE PARKS JR. CONSTRUCTION

EVANS MORGAN RAYMOND

MAVREDAKIS CRANERT CRAWFORD

MOKRI VANIS & JONES LLP

ESCHENBURG MATTHEW J. ESQ.

LAW OFFICES OF JOHN A. HAUSER

MANNING & KASS ELLROD RAMIREZ TRESTER

MANNING &KASS ELLROD RAMIREZ TRESTER LLP

MAYERS DARREN GREGORY

BRADLEY & GMELICH

Defendant and Cross Plaintiff Attorneys

MOKRI VANIS & JONES LLP

MANNING & KASS ELLROD RAMIREZ TRESTER

MANNING &KASS ELLROD RAMIREZ TRESTER LLP

PUCHE SERGIO JULIAN

CRAWFORD MAVREDAKIS CRANERT

ESCHENBURG MATTHEW

MCCLOSKEY HEATHER LYNN

8 More Attorneys Available

 

Court Documents

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION EXPARTE APPLICATION TO MOVE H...)

8/6/2020: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION EXPARTE APPLICATION TO MOVE H...)

Declaration - DECLARATION OF PEYTON DZIURA IN SUPPORT OF INTERVENOR TWIN CITY FIRE INSURANCE COMPANY'S MOTION FOR SUMMARY JUDGMENT AS TO COMMAND PERFORMANCE CONSTRUCTORS, INC. AND LYLE PARKS JR., INC.

8/7/2020: Declaration - DECLARATION OF PEYTON DZIURA IN SUPPORT OF INTERVENOR TWIN CITY FIRE INSURANCE COMPANY'S MOTION FOR SUMMARY JUDGMENT AS TO COMMAND PERFORMANCE CONSTRUCTORS, INC. AND LYLE PARKS JR., INC.

Declaration - DECLARATION OF HEATHER L. MCCLOSKEY IN SUPPORT OF INTERVENOR TWIN CITY FIRE INSURANCE COMPANY'S MOTION FOR SUMMARY JUDGMENT AS TO COMMAND PERFORMANCE CONSTRUCTORS, INC. AND LYLE PARKS JR

8/7/2020: Declaration - DECLARATION OF HEATHER L. MCCLOSKEY IN SUPPORT OF INTERVENOR TWIN CITY FIRE INSURANCE COMPANY'S MOTION FOR SUMMARY JUDGMENT AS TO COMMAND PERFORMANCE CONSTRUCTORS, INC. AND LYLE PARKS JR

Proof of Service - No Service

8/7/2020: Proof of Service - No Service

Memorandum of Points & Authorities - MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF INTERVEOR TWIN CITY FIRE INSURANCE COMPANY'S MOTION FOR SUMMARY JUDGMENT AS TO COMMAND PERFORMANCE COSTRUCTORS, IN

8/7/2020: Memorandum of Points & Authorities - MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF INTERVEOR TWIN CITY FIRE INSURANCE COMPANY'S MOTION FOR SUMMARY JUDGMENT AS TO COMMAND PERFORMANCE COSTRUCTORS, IN

Separate Statement - SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF INTERVENOR TWIN CITY FIRE INSURANCE CONPANY'S MOTION FOR SUMMARY JUDGMENT AS TO COMMAND PERFORMANCE CONSTRUCTOPRS, INC. AND LY

8/7/2020: Separate Statement - SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF INTERVENOR TWIN CITY FIRE INSURANCE CONPANY'S MOTION FOR SUMMARY JUDGMENT AS TO COMMAND PERFORMANCE CONSTRUCTOPRS, INC. AND LY

Notice - NOTICE INTERVENOR TWIN CITY FIRE INSURANCE COMPANY'S NOTICE OF MOTION FOR SUMMARY JUDGMENT AS TO COMMAND PERFORMANCE CONSTRUCTORS, INC. AND LYLE PARKS JR., IN. OR, IN THE ALTERNATIVE MOTION F

8/7/2020: Notice - NOTICE INTERVENOR TWIN CITY FIRE INSURANCE COMPANY'S NOTICE OF MOTION FOR SUMMARY JUDGMENT AS TO COMMAND PERFORMANCE CONSTRUCTORS, INC. AND LYLE PARKS JR., IN. OR, IN THE ALTERNATIVE MOTION F

Answer

8/14/2020: Answer

Declaration - DECLARATION OF RYAN Z. KELLER, ESQ. IN SUPPORT OF CROSSDEFENDANT IN INTERVENTION ALLIED WORLD SURPLUS LINES INSURANCE COMPANY S OPPOSITION TO COMMAND PERFORMANCE CONSTRUCTORS, INC.S MO

9/1/2020: Declaration - DECLARATION OF RYAN Z. KELLER, ESQ. IN SUPPORT OF CROSSDEFENDANT IN INTERVENTION ALLIED WORLD SURPLUS LINES INSURANCE COMPANY S OPPOSITION TO COMMAND PERFORMANCE CONSTRUCTORS, INC.S MO

Opposition - OPPOSITION TO COMMAND PERFORMANCE CONSTRUCTORS, INC.S MOTION TO COMPEL THE DEPOSITION OF SECURITY PROTECTION SERVICES, INC.S OFFICER CHIEF ROBERT EDWARDS, AND REQUEST FOR MONETARY SANCT

9/1/2020: Opposition - OPPOSITION TO COMMAND PERFORMANCE CONSTRUCTORS, INC.S MOTION TO COMPEL THE DEPOSITION OF SECURITY PROTECTION SERVICES, INC.S OFFICER CHIEF ROBERT EDWARDS, AND REQUEST FOR MONETARY SANCT

Declaration - DECLARATION OF RYAN Z. KELLER, ESQ. IN SUPPORT OF CROSSDEFENDANT IN INTERVENTION ALLIED WORLD SURPLUS LINES INSURANCE COMPANY S OPPOSITION TO LYLE PARKS JR. CONSTRUCTION, INC.S MOTION

9/1/2020: Declaration - DECLARATION OF RYAN Z. KELLER, ESQ. IN SUPPORT OF CROSSDEFENDANT IN INTERVENTION ALLIED WORLD SURPLUS LINES INSURANCE COMPANY S OPPOSITION TO LYLE PARKS JR. CONSTRUCTION, INC.S MOTION

Declaration - DECLARATION OF RYAN Z. KELLER, ESQ. IN SUPPORT OF CROSSDEFENDANT IN INTERVENTION ALLIED WORLD SURPLUS LINES INSURANCE COMPANY S OPPOSITION TO LYLE PARKS JR. CONSTRUCTION INC.S MOTION T

9/1/2020: Declaration - DECLARATION OF RYAN Z. KELLER, ESQ. IN SUPPORT OF CROSSDEFENDANT IN INTERVENTION ALLIED WORLD SURPLUS LINES INSURANCE COMPANY S OPPOSITION TO LYLE PARKS JR. CONSTRUCTION INC.S MOTION T

Declaration - DECLARATION OF RYAN Z. KELLER, ESQ. IN SUPPORT OF CROSSDEFENDANT IN INTERVENTION ALLIED WORLD SURPLUS LINES INSURANCE COMPANY S OPPOSITION TO COMMAND PERFORMANCE CONSTRUCTORS, INC.S MO

9/1/2020: Declaration - DECLARATION OF RYAN Z. KELLER, ESQ. IN SUPPORT OF CROSSDEFENDANT IN INTERVENTION ALLIED WORLD SURPLUS LINES INSURANCE COMPANY S OPPOSITION TO COMMAND PERFORMANCE CONSTRUCTORS, INC.S MO

Opposition - OPPOSITION TO LYLE PARKS JR. CONSTRUCTION INC.S MOTION TO COMPEL THE DEPOSITION OF SECURITY PROTECTION SERVICES, INC.S OFFICER CHIEF ROBERT EDWARDS, AND REQUEST FOR MONETARY SANCTIONS I

9/1/2020: Opposition - OPPOSITION TO LYLE PARKS JR. CONSTRUCTION INC.S MOTION TO COMPEL THE DEPOSITION OF SECURITY PROTECTION SERVICES, INC.S OFFICER CHIEF ROBERT EDWARDS, AND REQUEST FOR MONETARY SANCTIONS I

Opposition - OPPOSITION TO COMMAND PERFORMANCE CONSTRUCTORS, INC.S MOTION TO COMPEL THE DEPOSITION OF THE PERSON MOST KNOWLEDGEABLE OF SECURITY PROTECTION SERVICES, INC., AND REQUEST FOR MONETARY SAN

9/1/2020: Opposition - OPPOSITION TO COMMAND PERFORMANCE CONSTRUCTORS, INC.S MOTION TO COMPEL THE DEPOSITION OF THE PERSON MOST KNOWLEDGEABLE OF SECURITY PROTECTION SERVICES, INC., AND REQUEST FOR MONETARY SAN

Opposition - OPPOSITION TO LYLE PARKS JR. CONSTRUCTION, INC.S MOTION TO COMPEL THE DEPOSITION OF THE PERSON MOST KNOWLEDGEABLE OF SECURITY PROTECTION SERVICES, INC., AND REQUEST FOR MONETARY SANCTION

9/1/2020: Opposition - OPPOSITION TO LYLE PARKS JR. CONSTRUCTION, INC.S MOTION TO COMPEL THE DEPOSITION OF THE PERSON MOST KNOWLEDGEABLE OF SECURITY PROTECTION SERVICES, INC., AND REQUEST FOR MONETARY SANCTION

Opposition - OPPOSITION INTERVENOR TWIN CITY FIRE INSURANCE COMPANY'S COMBINED OPPOSITION TO LYLE PARS JR. CONSTRUCTION, INC.'S (1) MOTION TO COMPEL DEPOSITIONS AND REQUESTS FOR SANCTIONS

9/2/2020: Opposition - OPPOSITION INTERVENOR TWIN CITY FIRE INSURANCE COMPANY'S COMBINED OPPOSITION TO LYLE PARS JR. CONSTRUCTION, INC.'S (1) MOTION TO COMPEL DEPOSITIONS AND REQUESTS FOR SANCTIONS

Declaration - DECLARATION DECLARATION OF HEATHER L. MCCLOSEY IN SUPPORT OF INTERVENOR TWIN CITY FIRE INSURANCE COMPANY'S COMBINED OPPOSITION TO LYLE PARKS JR. CONSTRUCTION, INC.'S MOTIONS TO COMPEL DE

9/2/2020: Declaration - DECLARATION DECLARATION OF HEATHER L. MCCLOSEY IN SUPPORT OF INTERVENOR TWIN CITY FIRE INSURANCE COMPANY'S COMBINED OPPOSITION TO LYLE PARKS JR. CONSTRUCTION, INC.'S MOTIONS TO COMPEL DE

257 More Documents Available

 

Docket Entries

  • 02/18/2021
  • Hearing02/18/2021 at 10:30 AM in Department F at 12720 Norwalk Blvd., Norwalk, CA 90650; Order to Show Cause Re: regarding answer/responsive pleading to all the operative pleadings in both consolidated cases (BC643011 and BC677157)

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  • 02/18/2021
  • Hearing02/18/2021 at 10:30 AM in Department F at 12720 Norwalk Blvd., Norwalk, CA 90650; Trial Setting Conference

    Read MoreRead Less
  • 02/04/2021
  • Hearing02/04/2021 at 13:30 PM in Department C at 12720 Norwalk Blvd., Norwalk, CA 90650; Hearing on Motion for Summary Judgment

    Read MoreRead Less
  • 02/04/2021
  • Hearing02/04/2021 at 13:30 PM in Department C at 12720 Norwalk Blvd., Norwalk, CA 90650; Hearing on Motion for Summary Judgment

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  • 12/29/2020
  • Docketat 1:30 PM in Department C; Hearing on Motion for Summary Judgment (of Cross-Complainant Allied World Surplus Lines Insurance Co) - Not Held - Continued - Stipulation

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  • 10/29/2020
  • Docketat 1:30 PM in Department C; Hearing on Motion for Summary Judgment - Not Held - Continued - Stipulation

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  • 10/07/2020
  • Docketat 10:30 AM in Department F; Trial Setting Conference - Not Held - Continued - Stipulation

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  • 10/07/2020
  • Docketat 10:30 AM in Department F; Order to Show Cause Re: (regarding answer/responsive pleading to all the operative pleadings in both consolidated cases (BC643011 and BC677157)) - Not Held - Continued - Stipulation

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  • 10/07/2020
  • DocketMinute Order ( (Trial Setting Conference; Order to Show Cause Re: regarding a...)); Filed by Clerk

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  • 10/06/2020
  • Docketat 2:50 PM in Department F; Court Order

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538 More Docket Entries
  • 01/06/2017
  • DocketPROOF OF SERVICE SUMMONS & COMPLAINT

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  • 01/06/2017
  • DocketProof of Service (AS TO LYLE PARKS JR., INC. ); Filed by Attorney for Plaintiff

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  • 01/06/2017
  • DocketProof-Service/Summons; Filed by Siakimativa Simeta (Plaintiff)

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  • 12/07/2016
  • DocketComplaint; Filed by ALFREDO PEREZ (Plaintiff); Siakimativa Simeta (Plaintiff)

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  • 12/07/2016
  • DocketSummons; Filed by Plaintiff

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  • 12/07/2016
  • DocketComplaint; Filed by ALFREDO PEREZ (Plaintiff); Siakimativa Simeta (Plaintiff)

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  • 12/07/2016
  • DocketComplaint Filed; Filed by Attorney for Plaintiff

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  • 12/07/2016
  • DocketPLAINTIFF'S COMPLAINT FOR DAMAGES COUNTS 1. NEGLIGENCE; 2. PREMISES LIABILITY;

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  • 12/07/2016
  • DocketSummons Filed; Filed by Attorney for Plaintiff

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  • 12/07/2016
  • DocketSUMMONS

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Tentative Rulings

b'

Case Number: BC643011 Hearing Date: September 30, 2021 Dept: C

SIMETA v. ALBERTA\r\nDEVELOPMENT PARTNERS LLC

\r\n\r\n

CASE NO.: BC643011

\r\n\r\n

HEARING: 09/30/21

\r\n\r\n

\r\n\r\n

#3

\r\n\r\n

TENTATIVE ORDER

\r\n\r\n

\r\n\r\n

\r\nI. \r\nDefendant/Cross-Complainant/Cross-Defendant\r\nLYLE PARKS JR. CONSTRUCTION, INC.’s Demurrer to the First Amended Cross-Complaint-in-Intervention\r\nof Cross-Complainant-in-Intervention ALLIED WORLD SURPULS LINES INSURANCE\r\nCOMPANY on behalf of Security Protection Services, Inc. is OVERRULED.

\r\n\r\n

\r\n\r\n

II. \r\nDefendant/Cross-Complainant/Cross-Defendant LYLE\r\nPARKS JR. CONSTRUCTION, INC.’s Motion to Strike Portions of the First Amended\r\nCross-Complaint-in-Intervention of Cross-Complainant-in-Intervention ALLIED\r\nWORLD SURPULS LINES INSURANCE COMPANY on behalf of Security Protection\r\nServices, Inc. is GRANTED with 15 days leave to amend.

\r\n\r\n

\r\n\r\n

Opposing Party to give notice.

\r\n\r\n

\r\n\r\n

LYLE PARKS JR. CONSTRUCTION, INC.’s Request for Judicial\r\nNotice of the Express Indemnity Agreement between LYLE PARKS and COMMAND\r\nPERFORMANCE CONSTRUCTORS, INC. is DENIED. This document is not properly the\r\nsubject of judicial notice.

\r\n\r\n

\r\n\r\n

This personal injury action was filed on December 7, 2016. Plaintiffs\r\nSIMETA and PEREZ were working as security patrol officers at a construction\r\nsite in Downey, California for their employer, SECURITY PROTECTION SERVICES,\r\nINC. (“SPS”) on September 23, 2015, when their vehicle hit a concrete block\r\ncausing Plaintiffs to suffer serious injuries. (“Subject Incident”). Plaintiffs\r\nfiled separate actions against the Property Owners, General Contractor (LYLE\r\nPARKS JR., INC.), its subcontractor (COMMAND PERFORMANCE CONSTRUCTORS, INC.),\r\nand the developers and property owners (ALBERTA DEVELOPMENT PARTNERS; PCCP IRG\r\nDOWNEY and IRG DOWNEY). The actions were consolidated on 03/28/18. On May 18,\r\n2021, Cross-Complainant in Intervention/Cross-Defendant in Intervention ALLIED\r\nWORLD SURPLUS LINES INSURANCE COMPANY (“Allied”) filed the subject First\r\nAmended Cross-Complaint. (“FAXC”).

\r\n\r\n

\r\n\r\n

Defendant/Cross-Complainant/Cross-Defendant LYLE PARKS JR.\r\nCONSTRUCTION, INC. (“Lyle Parks”) specially and generally demurs to the fourth\r\ncause of action for express contractual indemnity.

\r\n\r\n

\r\n\r\n

Breach of Express\r\nContractual Indemnity

\r\n\r\n

Lyle Parks argues\r\nthat this cause of action is subject to demurrer because the FAXC does not\r\ncontain any allegations that an express indemnity contract was entered into\r\nbetween Lyle Parks and SPS prior to the Subject Accident.

\r\n\r\n

\r\n\r\n

Whether it is\r\nwritten, oral, or implied, the elements of a cause of action for breach of\r\ncontract are as follows: (1) the existence of a contract; (2) a plaintiff’s performance\r\nor excused non-performance; (3) a defendant’s breach; and (4) resulting damage\r\nto a plaintiff. (Reichert v. General Ins. Co. (1968) 68 Cal.2d 822,\r\n830.) “If\r\nan action is based on a breach of written contract, the terms must be set forth\r\nverbatim in the body of the complaint or a copy of the contract must be\r\nattached and incorporated by reference.” (Id. at 459.) Alternatively, if\r\nthe claim is based on a written contract then “a plaintiff may plead the legal\r\neffect of the contract rather than its precise language.” (Construction\r\nProtective Services, Inc. v. TIG Specialty Ins. Co., (2002) 29 Cal.4th 189,\r\n198-199.)

\r\n\r\n

\r\n\r\n

The FAXC alleges, in pertinent part, “If any written contract exists\r\nbetween Lyle Parks or any of the defendants ROES 1 through 50, on the one hand,\r\nand SPS, on the other hand, then the written contract provides that Lyle Parks\r\nand ROES 1 through 40, and each of them, agreed to indemnify and defend SPS,\r\nand hold SPS harmless; SPS performed that portion of the contract which gives\r\nrise to this defense and indemnification claim; the scope of said defense and\r\nindemnity applies to this Incident and the Complaints and Cross-Complainants at\r\nissue; and the failure of Lyle Parks and ROES 1 through 50, and each of them,\r\nto satisfy the defense, indemnity, and hold harmless obligations caused SPS\r\ndamages.” (FAXC ¶41.)

\r\n\r\n

\r\n\r\n

The demurrer to the\r\nfourth cause of action is OVERRULED. The Court finds that Allied has\r\nsufficiently pled the legal effect of the written indemnity agreement for\r\npurposes of surviving demurrer.

\r\n\r\n

\r\n\r\n

Motion to Strike Attorney’s Fees

\r\n\r\n

A motion to strike lies either when (1) there is “irrelevant, false or\r\nimproper matter inserted in any pleading”; or (2) to strike any pleading or\r\npart thereof “not drawn or filed in conformity with the laws of this state, a\r\ncourt rule or order of court.” (CCP §436.)

\r\n\r\n

\r\n\r\n

In the absence of an express agreement or statute, each party to a\r\nlawsuit is responsible for its own attorney fees. (CCP §1021.)

\r\n\r\n

\r\n\r\n

The Motion to Strike attorney’s fees is GRANTED with 15 days leave to\r\namend. Allied fails to allege the express terms of the agreement establishing\r\nAllied’s entitlement to attorney’s fees based on contract.

'b'

Case Number: BC643011 Hearing Date: August 19, 2021 Dept: C

SIMETA v. ALBERTA\r\nDEVELOPMENT PARTNERS LLC

\r\n\r\n

CASE\r\nNO.: BC643011

\r\n\r\n

HEARING: 08/19/21

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#4

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TENTATIVE ORDER

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\r\n\r\n

\r\nI. \r\nCross-Defendant in Intervention ALLIED WORLD\r\nSURPLUS LINES INSURANCE COMPANY’s Motion for Summary Judgment against\r\nCross-Complainants ALBERTA DEVELOPMENT PARTNERS, LLC; LYLE PARKS JR.\r\nCONSTRUCTION; PCCP IRG DOWNEY, LLC; IRG DOWNEY, LLC; and COMMAND PERFORMANCE\r\nCONSTRUCTORS, INC. is DENIED.

\r\n\r\n

\r\n\r\n

\r\nII. \r\nIntervenor TWIN CITY FIRE INSURANCE COMPANY’s (in\r\nits capacity as insurer of Cross-Defendant SECURITY PROTECTION SERVICES, INC.)\r\nMotion for Summary Judgment or alternatively Summary Adjudication against\r\nCross-Defendant/Cross-Complainant COMMAND PERFORMANCE CONSTRUCTORS, INC. and\r\nDefendant/Cross-Complainant LYLE PARKS JR., INC.’s Third Amended\r\nCross-Complaint. is DENIED.

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Opposing\r\nParty(s) to give Notice.

\r\n\r\n

\r\n\r\n

This\r\npersonal injury action was filed on December 7, 2016. Plaintiffs SIMETA and\r\nPEREZ were working as security patrol officers at a construction site in\r\nDowney, California for their employer, SECURITY PROTECTION SERVICES, INC.\r\n(“SPS”) on September 23, 2015, when their vehicle hit a concrete block causing\r\nPlaintiffs to suffer serious injuries. (“Subject Incident”). Plaintiffs filed\r\ntwo separate actions against the Property Owners, General Contractor (LYLE\r\nPARKS JR., INC.), its subcontractor (COMMAND PERFORMANCE CONSTRUCTORS, INC.),\r\nand the developers and property owners (ALBERTA DEVELOPMENT PARTNERS; PCCP IRG\r\nDOWNEY and IRG DOWNEY). The actions were consolidated on 03/28/18.

\r\n\r\n

\r\n\r\n

Cross-Defendant\r\nin Intervention ALLIED WORLD SURPLUS LINES INSURANCE COMPANY (“Allied”), in its\r\ncapacity as insurer of SPS moves for summary judgment against: (1) Cross-Complainant\r\nALBERTA DEVELOPMENT PARTNERS, LLC (“Alberta”) (First Amended Cross-Complaint\r\nFILED on March 2, 2018); (2) LYLE PARKS JR. CONSTRUCTION (“Lyle Parks”) (Third\r\nAmended Cross-Complaint FILED on April 18, 2019; (3) PCCP IRG DOWNEY, LLC and\r\nIRG DOWNEY, LLC (“PCCP/IRG”) (First Amended Cross-Complaint FILED on March 2,\r\n2018); and (4) COMMAND PERFORMANCE CONSTRUCTORS, INC. (“Command”)\r\n(Cross-Complaint FILED on September 13, 2018).

\r\n\r\n

\r\n\r\n

Intervenor\r\nTWIN CITY FIRE INSURANCE COMPANY (“Twin City”), in its capacity as insurer of SPS\r\nseparately moves for summary judgment against (1) Command; and (2) Lyle Parks.\r\nUnlike Allied, Twin City alternatively moves for summary adjudication as to\r\nCommand’s causes of action for: comparative indemnity and apportionment of fault,\r\ntotal equitable indemnity, and declaratory relief; as well as Lyle Parks’\r\ncauses of action for: total equitable indemnity; partial equitable indemnity;\r\ncontribution and repayment; declaratory relief re duty to indemnify;\r\ndeclaratory relief re duty to contribute; negligence; intentional\r\nmisrepresentation and fraudulent concealment; negligent misrepresentation;\r\nbreach of oral contract; and Unfair Bus. Practices.

\r\n\r\n

\r\n\r\n

SPS\r\nis a suspended California corporation and cannot defend itself in this action.\r\nHowever, its insurers, Allied and Twin City, have intervened in the action on\r\nbehalf of their insured. Consequently, Allied and Twin City argue that the\r\nCalifornia Workers Compensation Exclusivity Rule bars all claims contained in\r\nthe above referenced pleadings against SPS.

\r\n\r\n

\r\n\r\n

In\r\nOppositions separately filed in response to both Motions, the Opposing Parties\r\ngenerally and similarly argue that their claims are not barred by the Workers\r\nCompensation Exclusivity Rule because: (1) there was a written agreement\r\nbetween the Opposing Parties and SPS wherein SPS expressly agrees to indemnify\r\nthe Opposing Parties in the event of any injuries occurring to its employees;\r\n(2) the exclusivity rule does not apply because SPS fraudulently concealed the\r\nexistence of its workers’ compensation policy; (3) the exclusivity rule does\r\nnot apply because no evidence can be presented that Plaintiff Simeta has or\r\nwill receive workers’ compensation benefits; and (4) the exclusivity rule does\r\nnot apply because Plaintiffs were acting outside the scope of their employment\r\nat the time of the Subject Incident.

\r\n\r\n

\r\n\r\n

California’s workers compensation system provides the exclusive\r\nremedy “in lieu of any other liability whatsoever” for injury or damages\r\nsustained by an employee arising out of and in the course of employment. (Labor\r\nCode §§3600, 3602 et seq.) The Supreme Court noted that the essence of the\r\nLabor Code’s “compensation and the exclusive remedy provisions is an injury\r\nsustained and arising out of the course of employment….” (Cole v. Fair Oaks\r\nFire Protection (1987) 43 Cal.3d 148, 160.) If injuries are sustained\r\nbecause of an act “arising out of employment” an action is barred “no matter\r\nwhat its name or technical form….” (Id.)

\r\n\r\n

\r\n\r\n

“If an action as provided in this chapter prosecuted by the\r\nemployee, the employer, or both jointly against the third person results in\r\njudgment against such third person, or settlement by such third person, the\r\nemployer shall have no liability to reimburse or hold such third person\r\nharmless on such judgment or settlement in the absence of a written\r\nagreement so to do executed prior to the injury.” (emphasis added.) (Labor\r\nCode §3864.) “The purpose of the statute is to eliminate an employer’s\r\nliability under an equitable or implied indemnity theory when its employee is\r\ninjured during the course and scope of employment due to the negligence or\r\npartial negligence of a third party. Section 3864 restricts the employer’s\r\nresponsibilities to those imposed by the workers’ compensation laws and\r\ninsulates it from indemnity claims unless they are based on an express contract\r\nof indemnity executed by the employer prior to the injury. [Cite.]” (City of\r\nOakland v. Delcon Associates (1985) 168 Cal.App.3d 1126, 1128-1129.)

\r\n\r\n

\r\n\r\n

In Oppositions to the instant Motions, the Opposing Parties submit\r\nand rely upon the Declaration of Van Hester—Vice President/Project Manager for\r\nLyle Parks with respect to The Promenade at Downey construction site. Mr.\r\nHester states, in pertinent part, “At all times relevant herein, LYLE PARKS was\r\nthe general contractor for the Subject Project. Prior to the Subject Accident,\r\nLYLE PARKS entered into an agreement with the owner of SPS, Chief Robert\r\nEdwards (‘Edwards’), which both LYLE PARKS and SPS signed, to provide foot\r\npatrol security services at the Subject Project. Pursuant to the agreement\r\nreached with Chief Edward of SPS and LYLE PARKS, SPS expressly agreed to\r\ndefend, indemnify and hold harmless LYLE PARKS for any claims or injuries\r\narising out of or related to its work at the Subject Project, and further\r\nagreed to purchase and maintain appropriate commercial general liability\r\ncoverage for the Subject Project, with LYLE PARKS, ALBERTA TIERRA LUNA\r\nMANAGEMENT, PCCP IRG DOWNEY, LLC; and IRG DOWNEY, LLC named as additional\r\ninsureds.” (Hester Decls., ¶¶4.) Mr. Hester further indicates that he has\r\nsearched for the written agreement between Lyle Parks and SPS but has been\r\nunable to locate it. (Hester Decls. ¶¶6.)

\r\n\r\n

\r\n\r\n

Based on the evidence presented, the Court finds that there is a\r\ntriable issue of material fact as to whether an express written agreement for\r\nindemnity exists. Although the actual agreement has not been submitted into\r\nevidence, no party is disputing the fact that it actually exists. Consequently,\r\nthe Court cannot find that the Cross-Claims are barred by the Workers’\r\nCompensation Act at this stage in the litigation. Accordingly, the Motions are\r\nDENIED, and the Court declines to render any opinions as to the parties’\r\nfurther arguments in support of or on in Opposition to the subject Motions.

\r\n\r\n

\r\n\r\n

Requests\r\nto Continue

\r\n\r\n

In\r\nseparate Declarations filed in Opposition to each Motion, Attorney Matthew J.\r\nEschenburg (on behalf of Alberta, Lyle Parks, and PCCP/IRG) requests that both\r\nMotions be CONTINUED pursuant to CCP §437c(h). Specifically, Mr. Eschenburg\r\nindicates that a continuance is warranted because he has “not had the\r\nopportunity to complete…questioning of Plaintiff SIMETA regarding issues\r\ndirectly related to the present Motion[s] as to whether he was in the scope of\r\nemployment at the time of the Subject Accident, whether Chief Edwards had\r\nmisrepresented to him, as he had with Plaintiff PEREZ, regarding the fact that\r\nSPS did not have workers’ compensation insurance for which to apply or whether\r\nworkers’ compensation benefits were not recoverable based on the Subject\r\nAccident and/or whether Plaintiff SIMETA has received any workers’ compensation\r\nbenefits as a result of the Subject Accident. Presently, no date has been set\r\nforth further session of Plaintiff’s SIMETA’s deposition and, therefore, a\r\ncontinuance of the present Motion is necessary until this necessary deposition\r\nhas been completed.” (Eschenburg Decl(s). ¶¶32 and 38.)

\r\n\r\n

\r\n\r\n

“If\r\nit appears from the affidavits submitted in opposition to a motion for summary judgment\r\nor summary adjudication, or both, that facts essential to justify opposition\r\nmay exist but cannot, for reasons stated, be presented, the court shall deny\r\nthe motion, order a continuance to permit affidavits to be obtained or\r\ndiscovery to be had, or make any other order as may be just. The application to\r\ncontinue the motion to obtain necessary discovery may also be made by ex parte\r\nmotion at any time on or before the date the opposition response to the motion\r\nis due.” (CCP §437c(h).) A party seeking continuance under CCP §437c(h) must\r\nshow “(1) the facts to be obtained are essential to opposing the motion; (2)\r\nthere is reason to believe such facts may exist; and (3) the reasons why\r\nadditional time is needed to obtain those facts.” (Combs v. Skyriver\r\nCommunications, Inc. (2008) 159 Cal.App.4th 1242, 1270.)

\r\n\r\n

\r\n\r\n

The\r\nCourt finds that the facts contained in Mr. Eschenburg’s declarations fail to\r\nprovide sufficient information to invoke CCP §437c(h). It is unclear how\r\nPlaintiff SIMETA’s testimony would shed any light on the issue of the existence\r\nof an express indemnification agreement (the main fact in which the Court bases\r\nit’s ruling upon). The requests to continue the Motions are DENIED.

\r\n\r\n

\r\n\r\n

Allied’s\r\nEvidentiary Objections to the Declaration of Matthew J. Eschenburg

\r\n\r\n

1. \r\nOverruled

\r\n\r\n

2. \r\nSustained

\r\n\r\n

3. \r\nSustained

\r\n\r\n

4. \r\nOverruled

\r\n\r\n

5. \r\nSustained

\r\n\r\n

\r\n\r\n

Allied’s\r\nRequest for Judicial Notice is GRANTED. Cal. Ev. Code §452.

\r\n\r\n

\r\n\r\n

Twin\r\nCity’s Evidentiary Objections to Evidence Submitted in Support of Lyle Parks\r\nJr. Inc.’s Opposition

\r\n\r\n

1. \r\nOverruled

\r\n\r\n

2. \r\nOverruled

\r\n\r\n

3. \r\nSustained

\r\n\r\n

4. \r\nOverruled

\r\n\r\n

5. \r\nOverruled

\r\n\r\n

6. \r\nSustained

\r\n\r\n

7. \r\nSustained

\r\n\r\n

8. \r\nSustained

\r\n\r\n

9. \r\nSustained

\r\n\r\n

10. \r\nSustained

\r\n\r\n

11. \r\nSustained

\r\n\r\n

12. \r\nSustained

\r\n\r\n

13. \r\nSustained

\r\n\r\n

14. \r\nSustained

\r\n\r\n

15. \r\nSustained

\r\n\r\n

16. \r\nSustained

\r\n\r\n

17. \r\nSustained

\r\n\r\n

18. \r\nOverruled

\r\n\r\n

\r\n\r\n

Twin\r\nCity’s Evidentiary Objections to Evidence Submitted in Support of Command’s\r\nOpposition

\r\n\r\n

1. \r\nOverruled

\r\n\r\n

2. \r\nOverruled

\r\n\r\n

3. \r\nSustained

\r\n\r\n

\r\n\r\n

Command’s\r\nEvidentiary Objections to Evidence Submitted by Twin City and Allied

\r\n\r\n

1. \r\nOverruled

\r\n\r\n

2. \r\nOverruled

\r\n\r\n

3. \r\nOverruled

\r\n\r\n

4. \r\nOverruled

\r\n\r\n

\r\n\r\n

Cross-Complainants\r\nALBERTA TIERRA LUNA MANAGEMENT; LYLE PARKS JR. CONSTRUCTION, INC.; PCCP IRG\r\nDOWNEY, LLC and IRG DOWNEY, LLC’s Evidentiary Objections to Declaration of Ryan\r\nZ. Zeller Filed in Support of Allied’s Motion

\r\n\r\n

1. \r\nOverruled

\r\n\r\n

2. \r\nOverruled

\r\n\r\n

\r\n\r\n

Cross-Complainants\r\nALBERTA TIERRA LUNA MANAGEMENT; LYLE PARKS JR. CONSTRUCTION, INC.; PCCP IRG\r\nDOWNEY, LLC and IRG DOWNEY, LLC’s Request for Judicial Notice is GRANTED. Cal.\r\nEv. Code §452.

\r\n\r\n

\r\n\r\n

Lyle\r\nParks’ Evidentiary Objection to the Declaration of Heather L. McCloskey

\r\n\r\n

1. \r\nOverruled

\r\n\r\n

\r\n\r\n

Lyle\r\nParks’ Evidentiary Objections to the Declaration of Peyton Dziura

\r\n\r\n

1. \r\nOverruled

\r\n\r\n

2. \r\nOverruled

\r\n\r\n

\r\n\r\n

Lyle\r\nParks’ Request for Judicial Notice is GRANTED. Cal. Ev. Code §452.

'

Case Number: BC643011    Hearing Date: April 13, 2021    Dept: C

SIMETA v. ALBERTA DEVELOPMENT PARTNERS, LLC, et al.

CASE NO.: BC643011

HEARING:  4/13/21 @ 1:30 PM

#7

TENTATIVE ORDER

I. The court will hear from the parties. The court is inclined to GRANT the motion, but will continue the hearing to Tuesday, 6/8/21 at 1:30 p.m. in Dept. C, to allow Attorney Mayers to submit a declaration regarding his assertion of the attorney-client privilege.

II. Defendants Command Performance Constructors, Inc., Lyle Parks Jr. Construction, Alberta Tierra Luna Management, LLC, PCCP IRG Downey, LLP, and IRG Downey, LLP’s motion for issue and evidentiary sanctions is GRANTED in part. Edwards is once again ordered to appear at Defendants’ next properly noticed deposition(s). Monetary sanctions are imposed against Edwards, with $500.00 payable to Defendant Lyle Parks Jr. Construction and $500.00 payable to Defendant Command Performance Constructors, Inc., within 30 days.

In addition, this court is inclined to reconsider and amend its prior 9/15/20 Order, and order Security Protections Services’ PMK to appear at the next properly noticed deposition. The Court will hear from the parties.

Moving Parties to give NOTICE, including notice to Attorney Mayers.

I. Motion to Compel Further Responses

Defendants Alberta Tierra Luna Management, LLC, Lyle Parks Jr. Construction, Inc., PCCP IRG Downey, LLP, and IRG Downey, LLP’s motion to compel further responses to request for production of document (set no. one) propounded to Cross-Complainant-in-Intervention Twin City Fire Insurance Company pursuant to CCP § 2031.310.

Plaintiffs Simeta and Perez were security guards employed by Security Protection Services, Inc. (“SPS”). They were injured when Simeta’s personal vehicle crashed into a light pole base in the parking lot of a commercial construction project. The project manager is Lyle Parks Construction, Inc. and the installer of the light pole base is Performance Constructors, Inc. Plaintiffs filed suit against Lyle Parks and Performance Constructors for negligence and premises liability.

Cross-Complaints were filed against SPS, which is a suspended corporation.

Allied World Surplus Lines Insurance Company (“Allied”) and Twin City Fire Insurance Company (“Twin City”) each issued policies of insurance to SPS, and intervened on behalf of SPS in this action.

Nos. 12 and 13

On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand. (CCP § 2031.310(a).)

Movants seek the recorded interview between Edwards and Hopkins (of SPS), Attorney Darren Mayers, and a representative of Twin City. Twin City requested the interview to determine whether Attorney Mayers could represent Twin City and SPS (as he was already representing SPS under Allied’s policy). Subsequently, Twin City retained Attorney Mayers until 3/23/20, when current counsel was substituted in place of Attorney Mayers as counsel for Twin City. (Opposition, McCloskey Decl., ¶¶2-5.)

Movants contend that Twin City failed to timely respond to Cross-Defendant’s discovery, and therefore waived any objection, including one based on privilege or on the protection for work product. (CCP § 2031.3100(a).)

In opposition, Twin City does not assert the privilege, and does not object to producing the recorded interview.

However, Twin City points out that the privilege is also held by SPS who had retained the same attorney. Twin City cannot waive SPS’s privilege. Each of the joint clients holds the privilege protecting their confidential communications with the attorney; one client may not waive the privilege without the consent of the other. (American Mut. Liab. Ins. Co. v. Superior Court (1974) 38 Cal.App.3d 579, 591; Armenta v. Superior Court (2002) 101 Cal.App.4th 525, 533; Ev. Code § 912(b).)

McCloskey’s reference to what Attorney Mayers said is inadmissible hearsay. This court is not in receipt of any declaration from Attorney Mayers nor is the court in receipt of any objection lodged by SPS asserting any privilege.

As it is SPS’s burden to establish that the privilege exists, but failed to do so, the court is inclined to grant the motion.

However, as it appears that Attorney Darren Mayers was not notified of the motion and hearing, this court will continue the hearing to Tuesday, 6/8/21 at 1:30 p.m. in Dept. C, to allow Attorney Mayers to submit a declaration regarding any assertion of the attorney-client privilege.

II. Sanctions

Defendants Command Performance Constructors, Inc. (“Command Performance”), Lyle Parks Jr. Construction (“Lyle Parks”), Alberta Tierra Luna Management, LLC, PCCP IRG Downey, LLP, and IRG Downey, LLP move for evidentiary and issue sanctions pursuant to CCP § 2023.030.

If anyone engages in conduct that is a misuse of the discovery process, the court may impose monetary sanction, issue sanction, evidence sanction, terminating sanction, and contempt sanction. (CCP § 2023.030.) The sanctions the court may impose are such as are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks, but the court may not impose sanctions which are designed not to accomplish the objects of discovery but to impose punishment. (Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 487.) A prerequisite to the imposition of the dismissal sanction is that the party has willfully failed to comply with a court order. (Ibid.) Terminating sanctions should only be ordered when there has been previous noncompliance with a rule or order and it appears a less severe sanction would not be effective. (Link v. Cater (1998) 60 Cal.App.4th 1315, 1326.) A terminating sanction issued solely because of a failure to pay a monetary sanction is never justified. (Newland v. Sup.Ct. (1995) 40 Cal.App.4th 608, 615.)

Both Defendants Lyle Parks and Command Performance noticed depositions of SPS’s PMK and Chief Robert Edwards (SPS’s principal) multiple times from July 2019 through July 2020, resulting in failures to appear on behalf of SPS’s PMK and Chief Edwards.

On 9/15/20, this court ordered Edwards to appear at Defendant’s depositions. This court denied the motions relating to SPS’s PMK because SPS is a suspended corporation, and any SPS deposition would be futile because SPS is prohibited from defending itself.

Now, in opposition, Allied and Twin City contend that because the court did not order SPS to appear at deposition, SPS did not violate any court order, and Edwards is a non-party so any violation should not result in sanctions against SPS.

It is undisputed that Edwards is the principal of SPS, and has resisted all discovery efforts and communications to date.

To accomplish the object of discovery and prevent the misuse of the discovery process, the motion is GRANTED in part as to Edwards.

Edwards is once again ordered to appear at Defendants’ next properly noticed deposition(s). Monetary sanctions are imposed against Edwards, with $500.00 payable to Defendant Lyle Parks Jr. Construction and $500.00 payable to Defendant Command Performance Constructors, Inc., within 30 days.

As it appears that Allied and Twin City are now attempting to use Edwards’ intransigence as both a sword and shield, the court is inclined to reconsider its prior 9/15/20 order, and issue the following Amended Order:

Defendants Lyle Parks Jr. Construction and Command Performance Constructors, Inc.’s motion to compel the deposition of the PMK of Security Protection Services, Inc. is GRANTED. SPS’s PMK is ordered to appear at the next properly noticed deposition(s). If SPS is still in suspended status at the time of its deposition, SPS is prohibited from defending itself, and Defendants may record a non-appearance, as well as bring the appropriate sanctions motion.

The Court will hear from the parties as to the amended order.

Case Number: BC643011    Hearing Date: September 15, 2020    Dept: C

SIMETA v. ALBERTA DEVELOPMENT PARTNERS, LLC, et al.

CASE NO.: BC643011

HEARING:  9/15/20

JUDGE: OLIVIA ROSALES

[Remote appearances are encouraged and will be given priority.]

#10

TENTATIVE ORDER

I. Defendant Lyle Parks Jr. Construction’s motion to compel the deposition of Security Protection Services, Inc.’s Officer Chief Robert Edwards is GRANTED.

II. Defendant Lyle Parks Jr. Construction’s motion to compel the deposition of the PMK of Security Protection Services, Inc. is DENIED.

III. Defendant Command Performance Constructors, Inc.’s motion to compel the deposition of Security Protection Services, Inc.’s Officer Chief Robert Edwards is GRANTED.

IV. Defendant Command Performance Constructors, Inc.’s motion to compel the deposition of the PMK of Security Protection Services, Inc. is DENIED.

No sanctions. Moving Parties to give NOTICE.

Defendants Lyle Parks Jr. Construction and Command Performance Constructors, Inc. move to compel the depositions of Security Protection Services, Inc. (“SPS”)’s PMK and Chief Robert Edwards pursuant to CCP § 2025.010.

Plaintiffs Simeta and Perez were security guards employed by SPS. They were injured when Simeta’s personal vehicle crashed into a light pole base in the parking lot of a commercial construction project. The project manager is Lyle Parks Construction, Inc. and the installer of the light pole base is Performance Constructors, Inc. Plaintiffs filed suit against Lyle Parks and Performance Constructors for negligence and premises liability.

Allied World Surplus Lines Insurance Company and Twin City Fire Insurance Company intervened on behalf of SPS.

"Any party may obtain discovery within the scope delimited by Chapter 2 (commencing with §2017.010) and Chapter 3 (commencing with §2017.710), and subject to the restrictions set forth in Chapter 5 (commencing with §2019.010) by taking in California the oral deposition of any person, including any party to the action." (CCP § 2025.010.)

"[A]n oral deposition may be taken as follows: (a) The defendant may serve a deposition notice without leave of court at any time after that defendant has been served or has appeared in the action, whichever occurs first. (b) The plaintiff may serve a deposition notice without leave of court on any date that is 20 days after the service of the summons on, or appearance by, any defendant. On motion with or without notice, the court, for good cause shown, may grant to a plaintiff leave to serve a deposition notice on an earlier date." (CCP § 2025.210.)

SPS is a suspended corporation and as such, “lacks the legal capacity to prosecute or defend a civil action during its suspension. On the other hand, a suspended corporation may be sued and a default judgment may be entered upon its failure to respond.”  (Tabarrejo v. Superior Court (2014) 232 Cal.App.4th 849, 862.) Its insurers may intervene in the action to address, in the insurer’s own name, the claims against the suspended policyholder corporation. (Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2006) 136 Cal.App.4th 212.)

Intervenor Allied World Surplus Lines Insurance Company (“Allied”) intervened in March 2019, “to protect its own interests and defend SPS on liability and damages to minimize exposure to Allied.” (Allied Opposition, 2:21-22.)

On 11/12/19, Intervenor Twin City Fire Insurance Company filed an Answer “on behalf of… Security Protection Services, Inc.” (Answer filed 11/12/19)

Both Lyle Parks and Command Performance noticed depositions of SPS’s PMK and Chief Edwards multiple times from July 2019 through July 2020, resulting in a failure to appear on behalf of SPS’s PMK and Chief Edwards.

In opposition, both Allied and Twin Cities contend that they should not be sanctioned for SPS’s conduct because they do not represent SPS. Allied attempted to gain SPS and Chief Edwards’ participation, but they failed to cooperate. (Allied Opposition, 4:11-27.)

Allied makes the additional argument that SPS’s PMK cannot be deposed because SPS has no capacity to defend the lawsuit. Neither Allied nor Twin City argue that Edwards may not be deposed.

Accordingly, the motions are DENIED as to SPS’s PMK because SPS lacks the capacity to participate in the action. The motions are GRANTED as to SPS’s Chief Edwards. Chief Edwards, in his individual capacity, is ordered to appear at the next properly noticed deposition.

Because it appears that SPS has no desire to revive its corporate status to participate in this action, and has heretofore failed to respond to the parties’ requests, upon a properly filed motion, this court will consider imposing issue sanctions to preclude any party (including Twin Cities and Allied) from offering any witnesses, documents, or evidence from SPS.

No sanctions.

Case Number: BC643011    Hearing Date: August 06, 2020    Dept: G

SIAKIMATIVE SIMETA VS ALBERTA DEVELOPMENT PARTNERS, LLC

BC643011

EX PARTE HEARING: AUGUST 6, 2020 DEPT. G

TENTATIVE RULING

Grant.

All hearings are consolidated and set for September 15, 2020 at 10:30 a.m., in Dept. C

Case Number: BC643011    Hearing Date: February 25, 2020    Dept: SEC

SIMETA v. ALBERTA DEVELOPMENT PARTNERS LLC, et al.

CASE NO.: BC643011

HEARING: 2/25/20

JUDGE: OLIVIA ROSALES

#4

TENTATIVE ORDER

Defendant Lyle Parks Jr. Construction, Inc.’s motion for an order requiring undertaking to secure an award of costs and fees under CCP 1030 is DENIED.

Plaintiff to give NOTICE.

Defendant Lyle Parks Jr. Construction, Inc. moves for an undertaking pursuant to CCP § 1030.

(a) (b) The motion shall be made on the grounds that the plaintiff resides out of the state or is a foreign corporation and that there is a reasonable possibility that the moving defendant will obtain judgment in the action or special proceeding. The motion shall be accompanied by an affidavit in support of the grounds for the motion and by a memorandum of points and authorities. The affidavit shall set forth the nature and amount of the costs and attorney's fees the defendant has incurred and expects to incur by the conclusion of the action or special proceeding. (CCP § 1030(a) and (b).)

Plaintiff presently “resides in the Independent State of Samoa.” (Motion, Ex. J, Plaintiff’s Objection to the Notice of Deposition served on 3/1/19.) Plaintiff does not dispute this fact in opposition.

When an employee of an independent contractor is injured in the workplace, the injured employee generally cannot sue the party that hired the contractor to do the work. (Privette v. Superior Court (1995) 5 Cal.4th 689, 695.) A hirer “delegate[s] responsibility for performing the task safely, and assignment of liability to the contractor follow[s] that delegation.” (Seabright Ins. v. U.S. Airways Inc. (2011) 52 Cal.4th 590, 600.)

An exception to the Privette general rule of nonliability provides that a hirer of an independent contractor may be liable if the hirer retained control over safety conditions and the exercise of retained control affirmatively contributed to the employee’s injuries. (Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 202.) Because the liability of the contractor, the person primarily responsible for the worker's on-the-job injuries, is limited to providing workers' compensation coverage, it is unfair to impose tort liability on the hirer of the contractor merely because the hirer retained the ability to exercise control over safety at the worksite. The imposition of tort liability on a hirer should depend on whether the hirer exercised the control that was retained in a manner that affirmatively contributed to the injury of the contractor's employee. (Hooker, supra, 27 Cal.4th at 210.) Another narrow exception to Privette's general rule of nonliability is that a hirer can be liable to an employee of an independent contractor insofar as the hirer's provision of unsafe equipment affirmatively contributes to the employee's injury. (McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219, 225.)

Defendant contends that there is a reasonable possibility that Defendant will obtain a judgment. In support of this contention, Defendant submits the following evidence:

· Defendant hired Security Protection Services, Inc. (“SPS”) as an independent subcontractor to perform security services at the construction site. (Mahlstead Decl., ¶ 3.)

· Pursuant to the contract, SPS’s scope of work did not include the use of patrol cars, but instead was specifically restricted to foot (walking) patrol. (Id.; Motion, Ex. I, 5/9/18 letter.)

· Defendant hired Command Performance Constructors, Inc. (“CPC”), who was the subcontractor who installed the light pole base that Plaintiff collided with. (Id.)

· Plaintiff was employed by SPS when he was injured while driving his vehicle during his patrol and collided with a light pole base. (Ex. D, Plaintiff’s response to Special Interrogatory No. 1; Complaint, ¶ 11.)

· Defendant did not design, construct or install or otherwise work on the light pole base that Plaintiff ran into and had no responsibility for the safety of the subcontractors, which instead were delegated to the subcontractors. (Mahlstead Decl., ¶ 5.)

· Defendant did not provide any instruction or direct oversight over the means and methods by which Plaintiff was to perform his work. Instead, all of these decisions regarding instructions or direct oversight over the means and methods of providing work were left solely to SPS, CPC and/or Plaintiff. (Id. at ¶ 6.)

· Defendant did not supervise, instruct or otherwise advise any of the subcontractors or their employees on the means and methods of performing their work. Instead, all of these decisions regarding the means and methods of performing their work were left solely to the subcontractors themselves. (Id. at ¶ 7.)

· Defendant did not provide any supplies or equipment to any subcontractors. Instead, all of these decisions regarding providing supplies or equipment were left solely to the subcontractors themselves. (Id. at ¶ 8.)

· Defendant did not retain any control on how any of the subcontractors performed their work at the Subject Project. Instead, all of these decisions regarding how the subcontractors performed their work were left solely to the subcontractors themselves. (Id. at ¶ 9.)

· Defendant did not provide any safety instructions to any of the subcontractors. Instead, all of the decisions regarding the providing of safety for their employees were left solely to the subcontractors themselves. (Id. at ¶ 10.)

· Prior to the accident, no one had advised Defendant that a dangerous condition existed, including the concrete light pole base that Plaintiff collided into. (Id. at ¶ 11.)

· Defendant was unaware of any concealed preexisting hazardous condition that existed at the Subject Project. (Id. at ¶ 12.)

The evidence supports the reasonable possibility that Defendant hired SPS, an independent contractor to perform patrol services, and therefore, delegated to SPS responsibility over safety in the performance of such services. The evidence also supports the reasonable possibility that Defendant did not retain control over the means and methods of any of the work of its subcontractors, did not provide any supplies or equipment involved in the accident, and was unaware of any dangerous or concealed preexisting hazardous conditions. Further, there are no facts or evidence showing that any act or omission on the part of Defendant affirmatively contributed to Plaintiff’s injuries.

In opposition, Plaintiff contends that Defendant’s evidence is not “substantial or the best available.” (Opposition, 7:26-27.) However, substantial evidence is not the standard. The standard is whether Defendant possesses evidence that supports a “reasonable possibility” of prevailing. Plaintiff’s evidence merely disputes Defendant’s evidence. The court is not weighing the evidence at this juncture. Based on the evidence submitted, pursuant to Privette v. Superior Court (1995) 5 Cal.4th 689 and Seabright Ins. v. U.S. Airways Inc. (2011) 52 Cal.4th 590, Defendant has demonstrated a reasonable possibility of prevailing.

Alternatively, Plaintiff requests that the court exercise its discretion in waiving the undertaking based on Plaintiff’s indigency.

Where the plaintiff establishes indigency, a trial court has discretion to waive the posting of security under Section 1030. (Bank of America v. Superior Court (1967) 255 Cal.App.2d 575, 578.) The “party seeking relief from the requirement of posting a bond or undertaking has the burden of proof to show entitlement to such relief.” (Williams v. FreedomCard, Inc. (2004) 123 Cal.App.4th 609, 614; see Baltavan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1434 - “the plaintiff should make a prima facie showing that he has unsuccessfully attempted to obtain the required undertaking or that he is unable to furnish it”.) “[T]he court had discretion to deny plaintiff's motion upon the sole ground that while the support for the motion showed plaintiff's present personal inability to make any payment, it did not show her inability to obtain sureties against a future contingency.” (Fuller v. State of California (1969) 1 Cal.App.3d 664, 670-671.)

In exercising its discretion the court shall take into consideration all factors it deems relevant, including but not limited to the nature of the action or proceeding, the nature of the beneficiary, whether public or private, and the potential harm to the beneficiary if the provision for the bond is waived. (Alshafie v. Lallande (2009) 171 Cal.App.4th 421, 429.)

Here, Plaintiff declares: “I have been unable to work and my condition is worsening. I am single and have no children. I rely on family and friends for life's basic necessities, such as food, shelter, transportation and the like. I cannot provide a cashier's check or bank letter of credit for any amount and I do not know anyone who could or would post the undertaking for me. I do not own any real property or other appreciable assets. I have no investments such as stocks or bonds or life insurance policies or retirement accounts. I do not own an automobile. I am not currently earning any money and need medical treatment as my condition continues to worsen.” (Simeta Decl., ¶¶ 4-5.)

Contrary to Defendant’s assertion in its Reply at 1:24-11:2, Plaintiff denies owning any “appreciable assets,” and states that he is single and does not know anyone who could or would post an undertaking on his behalf. The court is satisfied that Defendant is unable to obtain an undertaking.

Accordingly, this court will exercise its discretion in waiving the undertaking. The motion is DENIED.

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